Two recent decisions outline how remedial activities and regulatory activities can defeat citizen enforcement actions. In Tilot Oil, LLC v BP Products (E.D. WI 2012) a federal court held that remedial activities could defeat a citizen suit that alleged that a petroleum spill caused an “imminent and substantial engangerment” under the Resource Conservation and Recovery Act (RCRA). The court concluded that the remedial work defendant was engaged in prevented the endangerment from being “imminent and substantial.”

The Tilot Oil Court recognized that ordinarily, “imminent and substantial endangerment” will present a question of fact. Here, however, the court granted defendant’s motion for summary judgment on that issue, even though defendant was clearly the cause of the contamination and benzene was present present in the basement of plaintiff’s facility. Among the factors that went into the decsion was the operation of a remediation (ventillation) system in the plaintiff’s facility. The court noted that in 87th Street Owners Corp. v Carnegie Hill-87th St. Corp., 251 F. Supp. 2d 1215 (S.D.N.Y 2002) a New York court concluded that the threat continues until the remediation is complete, and thus remedial action would not defeat the claim. The Tilot Oil Court disagreed with the plaintiff’s view that such a conclusion is compelled in all cases. Each case, the Tilot Oil Court concluded, must be assessed on its own facts and in this case, the remediation meant that there was no “imminent and substantial” threat.

In Sierra Club v ICG Eastern, LLC, 2011 WL 2600736) (N.D W.Va 2011), a Federal District Court in West Virginia, provided a good primer on what type of enforcement activity will defeat a Clean Water Act (CWA) citizens suit. The ICG case arose out of a suit by an environmental advocacy group to enforce provisions of the CWA. The CWA, like many other environmental statutes, permits citizens to bring enforcement suits to serve as a check on whether State and Federal agencies are being diligent in thier enforcement activities. The CWA citizen suit provision provides that no citizen’s suit may be brought if the government is “diligently prosecuting” an enforcement action to require compliance. The ICG Eastern case addresses what it means for the government to be “diligently prosecuting.”

The case arose out of alleged non-compliance with a discharge limitations in its permit regarding selenium. ICG Eastern applied to have the permit modified and was working with the State with regard to design and construction of treatment facilities. The modification was in part intended to extend the effective date of the limitations. The extension sought would have been a further extension, as West Virginia DEP had already delayed implimentation of the regulations. State action on the permit modification was delayed, in part due to objections raised by federal EPA. Plaintiffs sent a notice of intent letter informing the company of intent to file suit and West Virginia DEP filed an enforcement action three days prior to expiration of the 60 day waiting period.

Plaintiffs claimed that West Virginia DEP was not “diligently prosecuting” and the court found that a plaintiff has a difficult burden of proof in this regard. Indeed, the court stated there that “diligence is presumed” and merely showing that the government is being less aggressive than plaintiffs would prefer is not sufficient. Shortly after initiation of the enforcement action, the parties entered into a consent order. Plaintiffs claimed that the penalties were “unconscionably small” and the small penalty proved lack of diligence by the State. The court disagreed, reasoning that the primary enforcement role lies with the government.

These decisions are important because remediating parties often face citizen enforcement actions. Such actions play an important role in the remedial scheme and are often a prod to government enforcement, but no regulated party wants to face multiple regulators. The lesson of the cases is that how a regulated party structures its activities with the government can affect whether a citizen’s suit can go forward.